APPEAL by the plaintiff, Helene Pagenstecher, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1911, denying the plaintiff's motion for an injunction pendente lite.
Julien T. Davies, for the appellant.
John H. Emmerich, for the respondent.
The plaintiff, who owns the premises Nos. 48, 50 and 52 West Fortieth street, brings this action to enjoin the defendant, the owner of premises No. 38 West Fortieth street, from altering and reconstructing the building on her premises into a store or business structure in alleged violation of a restrictive covenant, contained in deeds of a referee in partition. It appears that about half of the block on the south side of West Fortieth street, between Fifth and Sixth avenues, including the premises in question, was owned by one David Banks who died in
1871. One of his heirs brought a suit for partition and after a decree directing a sale in parcels, he applied to the court, upon notice to all parties, for an order instructing the referee to sell subject to restrictions. The order granting the motion recites that it was opposed by all of the defendants, including the guardian ad litem of an infant defendant. Pursuant to the said order and decree, the property was sold in lots, and the deed to each purchaser contained the following provision:
'And the said party of the second part (being the purchaser at the sale, or his assigns), for himself, his heirs and assigns, doth covenant and agree to and with the said party of the first part (being the referee), and his heirs and assigns, and to and with all persons now or hereafter deriving an interest in this covenant by or through the said party of the first part, or by or through his grantees or assigns, as follows; that is to say, that the party of the second part, his heirs or assigns, shall not at any time hereafter erect, or cause, or suffer, or permit to be erected upon the hereby granted premises, or any part thereof, any building other than a brick or stone private dwelling house, not less than three stories in height.'
Thereafter dwelling houses were erected by the various purchasers in conformity with said covenant. There has been no change in the character of the buildings on the said lots except that the New York Club has since been erected on lots 18, 20 and 22. The defendant proposes to reconstruct the building on her lot by removing the present front up to the second story sill and by extending it forward to the building line of the street and providing it with a new front of glass and iron, the rear of the building up to the second story to be extended to the property line. She proposes to use the first floor for a tailoring establishment and the upper stories for apartments.
The learned justice at Special Term denied the motion on the ground that the character of the neighborhood had so changed as to make it inequitable to grant injunctive relief. While it is quite true that the current of business has reached the restricted territory, that of itself does not
afford ground for denying equitable relief, for, as was said by DANFORTH, J., in Trustees of Columbia College v. Thacher (87 N.Y. 311, 319), it is apparent that such encroachment was anticipated. It cannot be said that the encroachments of business have made the property undesirable for private residences. A fine public building and a park occupy the block on the north side of Fortieth street. The plaintiff says that she wishes to enjoy her property as a private residence. When she purchased it she had a right to rely upon the assumption that the encroachment of business would be stopped at the line of the restricted territory, and, in our judgment, it is no answer to her claim for equitable relief that the property may be worth more for business purposes. The defendant bought knowing, or chargeable with knowledge of, the restrictive covenant. It was expressly provided in the referee's deeds that the covenant of the second party should attach to and run with the land, and that it might 'be proceeded on for an injunction and for specific execution thereof against the said party of the second part, his heirs or assigns.' In the case of McClure v. Leaycraft (183 N.Y. 36), chiefly relied upon by the respondent, it was specifically found by the trial court that the change in the character of the neighborhood had made the property affected by the restrictive covenant undesirable for the erection of private dwellings, and upon that finding the Court of Appeals held that it would be inequitable and unjust to grant injunctive relief. That case was decided upon the authority of Trustees of Columbia College v. Thacher (supra), which, as already pointed out, distinctly recognized the principle that pecuniary considerations alone, or the mere encroachment of business up to the restricted territory, did not justify the denial of ...